In a budget proposal for New York, Gov. Kathy Hochul (D) would allow police who claim to smell marijuana to force a driver to take a drug test—a plan that’s drawing pushback not just from reform advocates but also from the state’s Assembly majority leader and the governor-appointed head of the Office of Cannabis Management (OCM).
Felicia A.B. said, “We have to find out how we can get this proposal into the budget.” Reid, OCM’s interim executive director, explained to Spectrum News 1 that “it’s just not going work in New York, and it won’t work with cannabis”.
Reid, who Hochul named to lead OCM in June last year, stated that the Governor’s attempt to amend state Marihuana Regulation and Tax Act’s (MRTA), which prohibits using marijuana odors as probable causes, “undermines basic tenets and decriminalization.”
Many advocates are raising alarms, warning the policy will put Black and Latino motorists at risk.
In an email sent to supporters, Karen O’Keefe wrote: “Removing this ban will allow for racially biased enforcement and intrusive searches on cannabis odor.”
She noted that while New York decriminalized cannabis in 1977, “New York City police largely ignored the law and made the city the marijuana arrest capital of the world for years—with Black and Latino people disproportionately targeted.”
O’Keefe wrote in his article that this change would not only give officers more power in targeting drivers who smell of marijuana but also could create problems for workers in the cannabis industry. “People who work on cannabis production and processing are often smelling like cannabis after work,” he said.
Hochul’s proposed budget law for transportation, environmental conservation and economic development includes the change. This adds “the smell of marijuana, burned cannabis or another drug” to the list of circumstances which are not exclusive and constitute “reasonable causes” for a motorist breaking the law.
A police officer could arrest someone, submit them to drug tests and search their car.
In the current law, reasonable cause includes both “visible signs” (such as alcohol or drugs) and open alcohol or other drug containers “in the car driven by the driver.”
Some legislative leaders have been offended by Hochul’s plans, such as Assembly Majority leader Crystal PeoplesStokes (D), the author of the bill that legalized marijuana in California.
Spectrum News 1 reported on Peoples’s statement that she is against this change, but declined to comment further. This was based on her comments made at the Black Hispanic Hispanic Legislative Conference.
Peoples-Stokes said, “This battle isn’t over.” It’s more important than ever to stay organized and to ensure that this legislation doesn’t get squashed.
In Albany, when asked about the new law, Ms. O’Neill said, “It needs to be reviewed. Not to change it, but for people to know.”
Hochul’s spokesperson claimed that her administration is “actively” negotiating with legislators about efforts to combat drugged-driving. But Spectrum reports multiple lawmakers, and other industry players have said they are in the dark.
In Illinois and Minnesota, major lawsuits have been filed over the use of cannabis smell to support an officer’s suspicions that a driver is guilty of a crime.
The Illinois Supreme Court decided in December that police can search vehicles based solely on the smell of cannabis. According to the court, if police can smell cannabis it is “almost sure” that marijuana has not been sealed into an odorproof container required by law.
In a different opinion from the Illinois high court, dated just months before, it was stated that burning cannabis smells bad. You can also check out our other blog posts. Searches can be conducted if there is sufficient justification.
Minnesota’s Supreme Court, in a 2023 decision, said the smell alone of marijuana did not prove probable cause.
This opinion noted that a court previously had ruled the mere smell of alcohol wasn’t enough cause for a search.
Some states prohibit the use of marijuana smell to justify searches.
One Missouri legislator, for instance, pre-filed legislation that prohibited police officers from using the smell or marijuana to justify a search of vehicles and property without a warrant.
Maryland has already passed legislation that will prohibit warrantless car searches solely based on the smell marijuana. New Jersey’s Supreme Court has already recently upheld similar rules in a case involving an improper search.
ATF investigators also reportedly told a Florida gun dealer to stop selling a handgun last year because they claimed that the buyer smelled of pot.
Virginia lawmakers rejected, in the current legislative session, a proposal which would have permitted law enforcement agencies to use marijuana odor as probable reason for a search.
JM Pedini was the executive director of Virginia NORML at the time and the development director for NORML. Virginia Republicans are trying to rollback this progress each year.
“Repealing this law would bring back the rampant claims of ‘I smell marijuana’ used as justification for traffic stops and searches,” Pedini continued. Virginia has legalized cannabis in medical and adult use for those over 21 years old. The Committee wisely rejected this attempt.
Senator John Fetterman circulates petition to legalize marijuana at the federal level